Exit Heydon, the High Court’s great outlier

The departure of two influential but wildly different High Court judges offers the chance for a fresh interpretation of constitutional law and creates new opportunities for collaboration, a report released today reveals.

William Gummow
’s retirement in October last year cost the court one of its “most consistent majority voices" on constitutional law, while the imminent loss of
Dyson Heydon
will mark the end of the term of one of its greatest dissenters, UNSW academics George Williams and Andrew Lynch argue in their report.

Mr Gummow was replaced by former commonwealth solicitor-general
Stephen Gageler
last year and Justice Heydon will be replaced by Federal Court Chief Justice
Patrick Keane
before his 70th birthday next month.

The High Court, led by Chief Justice
Robert French
, experienced a high rate of unanimous decisions in 2009 and 2010, but that came to a halt in 2011 and 2012 as Justice Heydon’s rate of dissent escalated.

AFR
AFR

There were unanimous decisions in 44 per cent and 50 per cent of matters in the court in 2009 and 2010 respectively. But in 2011, the number of unanimous cases fell to one in every six, and last year was one in eight, the report says.

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Mr Gummow was a “consistent member of the majority" in his 17-year term under three chief justices, but Justice Heydon gradually became a “frequent outlier", particularly after the so-called great dissenter – former judge
Michael Kirby
– retired in early 2009, the authors say. According to the authors, Justice Heydon will leave with a legacy of “judicial individualism" not seen since the 1930s and 1940s. He dissented in 19 of 47 judgments last year, or 40 per cent. His fellow judges each dissented in less than five cases.

Justice Heydon dissented even more frequently in 2011 – 45 per cent – and he was the only one of the court’s judges not to participate in a unanimous judgment during 2012.

“Justice Heydon’s individualism over this period has undoubtedly been a major factor in the French court’s inability to maintain the record levels of unanimity achieved in its first two years," the authors write.

Last year, he “did not co-author an opinion with any of his colleagues even once. This speaks of a level of judicial isolation, self-imposed or otherwise, not before seen in these statistical surveys."

Last year the court was characterised by headline grabbing decisions, such as those on plain packaging for cigarettes and commonwealth funding for school chaplains.

Mr Gummow’s retirement also marked “the exit from the court of one of its most consistent majority voices in constitutional law matters over the past decade and a half". “A reading of the decisions of the court over Justice Gummow’s 17 years on the bench demonstrates without doubt his intellectual leadership," the authors say.

“This is most obvious in the decisions handed down by the court on the separation of judicial power achieved by Chapter III of the Constitution."